European Union: Belgium Adopts Law Enacting EU Directive On Private Antitrust Damages

In Short

The Background: Belgium recently (and belatedly) adopted a Law transposing the EU directive on private antitrust damages.

The Result: The recently adopted Law aims at facilitating damage claims by parties harmed by competition law infringements. It brings Belgium into line with other EU countries that have already implemented the Directive.

Looking Ahead: The Law is expected to boost private competition law enforcement in Belgium and should enhance the full effectiveness of EU and Belgian competition rules. Still, some thorny issues remain open, such as damage quantification.

On June 6, 2017, Belgium adopted legislation ("Law") transposing the EU directive on private antitrust damages (Directive 2014/104, ("Directive")). The Law became applicable on June 22, 2017, and is expected to boost private competition law enforcement in Belgium and should enhance the full effectiveness of EU and Belgian competition rules.

The Directive, adopted on November 26, 2014, should have been implemented by December 27, 2016. Belgium is thus one of the last EU countries to transpose the Directive into national law, following Member States such as France, Italy, and the United Kingdom.

Private enforcement actions before Belgian courts have remained limited so far, notwithstanding some high-profile cases in the telecom, energy, and elevator sectors. The Law should encourage more damage claims, in particular by alleviating claimants' burden of proof and facilitating access to evidence.

Bringing a successful damage claim, even for clear-cut cartel infringements, has proven difficult in Belgium. This is illustrated by the failure of the European Commission (representing the EU institutions) and the Belgian State to obtain damages in their respective follow-on damage actions to the European Commission's 2007 Kone decision. In Kone, the Commission, in its capacity as competition law enforcer, found that several elevator companies had rigged bids for maintenance contracts. The Brussels Commercial Court rejected the damage claims, finding that the claimants had failed to prove to the requisite standard that the infringement had caused actual harm. The judgments are now under appeal, but the claimants will not benefit from the new procedural rules introduced by the Law, as these are applicable only for cases introduced after December 26, 2014.

Right to Full Compensation for Harm Caused by Competition Law Infringements

Reflecting the Directive, the Law recognizes the right of individuals to full compensation for harms caused by competition law infringements, including compensation for actual loss, loss of profit, and interest on damage amounts. Multiple or punitive damages, however, are not allowed, since overcompensation is expressly ruled out. The right to full compensation is applicable to damages arising both from (i) anticompetitive agreements and concerted practices and (ii) abuses of dominance, whether under EU or Belgian competition law.

Alleviating the Burden of Proof for Infringements

The Law eases the burden of proof for injured parties by introducing several presumptions:

First, the Law introduces an irrefutable presumption that a final decision finding an infringement, issued by the Belgian Competition Authority ("BCA") or the Market Court (a division of the Brussels Court of Appeal, which hears appeals against BCA decisions) constitutes evidence of fault in a follow-on damages action. However, infringement decisions by competition authorities from other EU Member States constitute only prima facie evidence of wrongdoing. The Law does not mention decisions of the European Commission (or of the EU courts in appeals of Commission decisions). Still, national courts cannot issue decisions that would run counter to such decisions under Article 16 of Regulation 1/2003. In the elevator cartel cases, the Belgian court accepted that it was bound by the Commission's decision as regards the existence of an infringement (and therefore a fault).

Second, the Law introduces a rebuttable presumption that cartel infringements cause harm. The Law extends the scope of this presumption foreseen in the Directive to cover not only cartels between competitors but also hub and spoke cartels. However it does not extend it as far as to include abuse of dominance cases. The rebuttable presumption should remove some burden of proof difficulties, such as in the above-referred elevator cases, where the Belgian court considered that the Commission's infringement decision as such did not prove that the tendering authorities had been overcharged. In this respect, an economic study commissioned by the European Commission had concluded that cartels lead very often, but not always, to a price mark-up. The Belgian courts must now presume that there is at least some damage (unless the infringer can refute this), but the presumption leaves unaddressed the knotty issue of the quantification of the damage. The Law provides that the court may seek the assistance of the competition authority for the quantification of the amount of the damages, but it is not obvious how a competition authority could provide meaningful assistance in this. In practice, courts usually appoint an independent expert to quantify the damage.

Third, indirect purchasers of goods or services affected by an infringement benefit from a rebuttable presumption that direct buyers passed on the overcharge. Defendants, however, can fend off damage claims from intermediary buyers by invoking the passing-on defense, i.e., reducing compensation to direct buyers by the amount the latter passed on to indirect purchasers. Even if the passing-on defense is successfully invoked, however, direct buyers are still entitled to compensation for any loss of profit resulting from the artificially inflated prices.

Intermediary buyers do not necessarily pass on the entire mark-up but may also absorb it partially or even completely in their own margins. Proving passing-on, and the extent or the absence thereof, is therefore difficult. In principle, defendants invoking the passing-on defense bear the burden of proof that such passing-on actually took place, but do not benefit from any presumption, as the legal presumption of passing-on benefits only indirect buyers (see below regarding access to evidence).

However, it is difficult to imagine that such presumption would not also influence the assessment of the relationship between the defendant and direct buyers. If the presumption is not taken into account, the defendant risks paying twice for the same damages: once to direct buyers, because he is unable to prove passing-on, and once to indirect buyers, because of the legal presumption. This would run counter to the principle that overcompensation is prohibited. Conversely, direct buyers risk being left empty-handed if courts, taking into account the passing-on presumption in favor of indirect buyers, are more easily led to assume that the mark-up was indeed passed on. Either way, the introduction of this presumption could have problematic (albeit unintended) consequences in practice.

Facilitating Access to Evidence

To address the information asymmetry between parties that often exists in these types of cases, where most of the evidence needed by claimants is typically in the hands of the defendant, the Law empowers the courts to order the defendant and/or third parties to disclose relevant evidence in their control. However, in order to protect the leniency and settlement regimes, leniency applications and settlement submissions have absolute protection from disclosure. Documents specifically prepared for antitrust investigations by parties or authorities have temporary protection until the competition authority has closed its investigation. All other documents are not protected, but their disclosure is subject to a proportionality test.

The Law, however, does not provide for discovery as it exists in the common law system, and it remains to be seen whether this will lead the Belgian courts to more readily order document production, as the Law does not necessarily derogate from the existing fairly restrictive conditions and procedures for disclosure of evidence of the Belgian Judicial Code. The courts will still have a wide discretion to grant or refuse access to evidence.

It is also worth noticing that not only claimants but also defendants can rely on the Law's provisions regarding production of evidence, for instance in support of a passing-on defense.

Undertakings that do not fully comply with an order to disclose evidence or destroy evidence risk fines of between €1,000 and €10 million. It is expected that this high maximum fine will have a sufficiently deterrent effect. The courts may also impose periodic penalty payments until attaining compliance with an order.

Joint and Several Liability of Infringers

The Law lays down the general principle that undertakings that participated in a competition law infringement are jointly and severally liable. This means that a cartel member may be held liable for sales made by another cartel member. However, the Law derogates from this rule for immunity recipients and for small to medium-sized enterprises ("SMEs") with a market share below 5 percent (except if they acted as leaders or coercers of the infringement or were repeat offenders). Immunity recipients and SMEs fulfilling these conditions, in principle, are liable only toward their own (direct or indirect) customers. However, they will still be fully liable if the claimant would otherwise be unable to obtain full compensation from the other infringers (e.g., in case of bankruptcy).

Limitation Periods

Claims are subject to a five-year limitation period, starting from the moment the infringement ends and the injured parties become aware of the infringement, the harm, and the infringer's identity. An investigation by a competition authority interrupts the limitation period until a final infringement decision is issued or until the investigation is otherwise concluded. To encourage out-of-court settlements, the limitation period is also suspended (for a maximum duration of two years) during a consensual dispute resolution procedure.

Collective Action

The Law does not derogate from the generally applicable Belgian regime for collective actions. This means in particular that such actions can be brought only by consumers, and not by businesses.

The text of the Law is available in French and in Dutch.

Three Key Takeaways

Transposition of the Directive into Belgian law should boost the private enforcement of antitrust law in Belgium. Parties that suffer harm from antitrust infringements can more confidently launch damages claims, e.g., following a cartel decision involving one of their suppliers.

In particular, the Law alleviates claimants' burden of proof, facilitates access to evidence, and enables claimants to await the outcome of a competition authority's enforcement procedure before initiating a civil damages suit.

The Law does not remove all potential obstacles to a successful damage claim, in particular because: (i) quantification of the damage remains a thorny issue to be determined on a case-by-case basis; and (ii) it does not provide for U.S.-style discovery or class actions by businesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Laurent De Muyter
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions